Home > Review of the week > 02 − 06 May 2016. The National Bank of Ukraine prepares for the abolition of a ban on repatriation of dividends

02 − 06 May 2016. The National Bank of Ukraine prepares for the abolition of a ban on repatriation of dividends

Tuesday, 10 May 2016 10:24

The Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Law of Ukraine “On the farm” on the stimulation of the establishing and activities of the family farms” of 31.03.15, № 1067-VIII. Now, when establishing the farm its founders are allowed to choose how it should be established as a legal entity or an individual-entrepreneur.

The farm registered as a legal entity, has the status of a family farm on the condition that in its business activities is used the work of members of this farm, which are exclusively members of one family.

An individual-entrepreneur independently or jointly with members of his/her family organizes the family farm without legal entity status on the basis of a contract of the establishment of the family farm. This contract should be notarised.

The State Fiscal Service of Ukraine in its letter “On the issues of confirmation of a certificate of the amount of supplied excisable raw materials” of 15.04.2016, № 8611/6/99-99-15-03-03-15 reported: after the introduction of electronic administration system of fuel realization (hereinafter – EASFR), i.e. after 01.03.2016, company could not use the mechanism of reducing the amount of excise duty payable on the amount of excise tax calculated for the raw materials of which the excise tax was paid, defined by paras.2,3 of subsection 5 of sec. XX “Transitional Provisions” of the Tax Code of Ukraine (hereinafter – TCU), since this mechanism was temporary and it was valid until the introduction EASFR. During functioning of EASFR should be applied the norms of subpara. 217.1.6 of TCU.

The procedure of electronic administration of fuel realization is approved by the Resolution of the Cabinet of Ministers of Ukraine (hereinafter – CMU) of 24.02.2016, № 113 (hereinafter – Procedure № 113). Paragraph 35 of the Procedure № 113 determined the mechanism of preparation of application for replenishment of volumes of fuel balance, where should be indicated the volumes of fuel balance that increase or decrease. The same mechanism is provided by paragraphs 232.4.3 of TCU.

At the same time for calculating the reduction of the amount of the excise tax, the payer should receive from the manufacturer or importer of excisable raw materials a certificate of the volume of supplied excisable raw materials (stating the name of the buyer (recipient) of excisable raw materials, information on the relevant sums of paid excise tax and list of tax invoices for value-added tax, formalized for the supply of such raw materials) and the confirmation of the supervisory authority of the charging of the excise tax to the budget. Such confirmation is provided to the manufacturer or importer of excisable raw materials by the supervisory authority at his/her location within one working day after the appeal by providing relevant certificate (subparas.3 of para. 13 of sub-section 5 of sec. XX “Transitional Provisions” of TCU).

The Ministry of Social Policy of Ukraine in its letter “On Termination of Employment” of 02.03.2016, № 60/06/186-16 reports: if employee’s letter of resignation from work at his/her own request is due to the inability to continue to the work, in particular the move to a new place of residence, the owner or an authorized body should terminate the employment contract within the period which the employee requests. In accordance with Articles 38, 39 of the Labour Code (hereinafter - Labour Code), the employee is entitled to terminate the employment contract concluded for an indefinite period and fixed-term employment contract, giving a two weeks’ notice in writing to the owner or the authorized body.

If it is impossible for any reason to implement termination of employment in accordance with the procedure established by the applicable legislation, these relations should be terminated through the courts.

The Ministry of Social Policy of Ukraine in its letter “On payment for the labour of an employee during business trip” of 06.03.2015, № 141/18/99-15 considered that issue.

Thus, during the time when the employee is on a business trip, the employee should be paid under Art.121 of the Labor Code, according to the order of the director.

In accordance with Art.121 of the Labor Code, employees, who are sent on a business trip, should be paid for the executed work under the conditions defined by the employment or collective agreement, and the amount of such payment should not be lower than the average wage reserved by the employees for all working days on a business trip according to the schedule established at the place of permanent employment. That is, in case of sending an employee on a business trip it is necessary to compare the amount of the daily average and the daily earnings in accordance with the terms of the employment contract and if the daily earnings is above the average pay, the wage should be paid for the business trip, and if the high average earnings, the average wage should be paid.

Also, it is mentioned in the letter that in accordance with Art. 265 of the Labour Code, persons guilty of a violation of labor legislation, are liable according to the current law.

The Ministry of Regional Development, Construction and housing and public utility sector of Ukraine in its letter “On the cost of exploitation of the leased construction machinery” of 21.03.2016, № 7/15-2930 explained the procedure for accounting of labor costs of workers employed in the operation and maintenance of removable construction machinery, which to be used for the construction of facilities, when calculating the cost of construction.

Thus, the parties determine the conditions of machinery exploitation when the conclusion of lease agreement of construction machinery.

If, in accordance with the lease agreement, the exploitation of leased construction machinery is carried out by the machinists of the contractor, when determining the cost of the executed construction works, carried out with the use of such equipment, general production expenses and administrative costs as well as profits are taken into account as in general on the construction project and should be calculated based on of labor costs of machinists involved in the management and maintenance of leased machinery.

If the lease contract indicates that exploitation of the leased construction machinery is carried out by the machinists of the lessor, in this case, general production expenses and administrative costs as well as profit of the construction object in general are calculated without taking into account of labor costs of machinists engaged in the management and maintenance of removable construction equipment.

The National Bank of Ukraine(hereinafter − the NBU) on its website announced that prepares for the abolition of a ban on the purchase and transfer of foreign currency for the purpose of repatriation abroad to a foreign investor of dividends, which was approved by Resolution of the Board of the NBU “On the regulation of the situation in the monetary and foreign exchange markets of Ukraine” of 03.03.2016, № 140. For this purpose 26.04.2016, the regulator sent an electronic message № 25-0005/36769 to the banks with a request to work with their clients to determine the intentions of returning dividends abroad.

The repatriation of dividends could be implemented by:

foreign investors (in the case if such transactions are carried out using an investment account);

issuers of corporate rights/shares/investment certificates, that are subject to dividend payment (in the case when the issuer by own carries out purchase/transfer of foreign currency abroad);

depositary institution, which support securities account of the depositor − foreign investor and provides for the payment of dividends on securities abroad.

Each of mentioned persons should choose only one authorized bank for this transaction. The bank client will not be allowed to such transactions in case of attempts to pay dividends through several banks.

The following information should be gathered from clients and provided to the NBU before 20.05.2016 by the banks:

the person who carries out the purchase/transfer of foreign currency in order to return dividends abroad;

an authorized bank;

period for which the dividends are paid, year;

total amount of dividends to be returned abroad to the foreign(-s) investor(s), UAH (for the purpose of filling in the form, the recalculation is carried out at the official rate of hryvnia to foreign currencies established by the National Bank of Ukraine on 26.04.2016).

Based on the received data, the NBU will develop a schedule and procedure for repatriation of dividends. Dividend payments in foreign currency will be implemented abroad gradually over a certain period.

The National Bank plans to abolish the ban on repatriation of dividends and announce the appropriate schedule and procedure after completion of the second review of the extended financing program with the International Monetary Fund.

The Supreme Court of Ukraine in its Order of 20.04.2016 with regard to case № 6-100цс16 concluded: deciding when considering the case of the restoration of an employee who was fired according to para.2 of sec.1 of Art.41 of the Labor Code, the question of attributing the claimant in a circle of employees who directly serve financial and commodity values, the court in each case should clarify:

1) if the performance of transactions, associated with the service of values, is the basic content of employment duties of the claimant;

2) if the performance of specified actions has responsible and accountable character with the presence of accounting, control of the movement and storage of valuables.

The employment contract on the initiative of the owner or the authorized body could be terminated in case of guilty actions of the employee, who directly serves the financial, trade or cultural values, if such actions provide the basis for loss of confidence in him/her on the part of the owner or the authorized body (para.2 of sec.1 of Art.41 of the Labour Code).

Termination of employment contract on this basis is possible under the following conditions:

· loss of confidence in the employee on the part of the owner or the authorized body.

Legal analysis of the norm of substantive law gives reason to believe that it assumes the occurrence of negative consequences for the employer or presence of incurred material damage to the employer as a mandatory condition for the dismissal of an employee. Dismissal on the basis of loss of confidence could be considered a reasonable if the employee, who directly serves monetary or commodity values (provides their receipt, storage, transportation, distribution, etc.), committed intentionally or negligently such actions, which give reasons to the owner or authorized body for the loss of confidence in him/her (in particular, violation of the rules of transactions with material values).